Supreme Court upholds Trump's travel ban

Kelsey Dallas, Deseret News

Tuesday

Jun 26, 2018 at 11:59 PM

The Supreme Court has ruled on Trump v. Hawaii, the high-profile case centered on the Trump administration's travel policies.

The Supreme Court on Tuesday upheld President Donald Trump's travel ban, affirming the president's broad authority to direct immigration policy even as some justices criticized Trump's treatment of the Muslim community as a violation of the First Amendment's protections for religion.

"I don't think anyone on the court disagrees that President Trump's statements were hostile towards Muslims and irresponsible. But (justices in the majority) did not want to let the hostility and irresponsibility shown by this one president upset the general principles of deference to the executive branch on immigration and national security," said Thomas Berg, a professor of law and public policy at the University of St. Thomas in Minneapolis.

Trump called for a "total and complete shutdown" of Muslim immigration during his 2016 presidential campaign and tweeted propaganda videos targeting Islam. However, the 5-4 majority in Trump v. Hawaii said the travel ban was "neutral on its face" and based on a thorough review of national security concerns.

"The proclamation is squarely within the scope of presidential authority," wrote Chief Justice John Roberts in the majority opinion.

Some legal scholars and analysts, including Justices Sonia Sotomayor and Ruth Bader Ginsburg, said the ruling contradicts the Supreme Court's decision in Masterpiece Cakeshop, which said anti-religion bias from a government official cannot be tolerated.

"In both instances, the question is whether a government actor exhibited tolerance and neutrality in reaching a decision that affects individuals' fundamental religious freedom," Sotomayor wrote in her dissent, which was joined by Ginsburg. "The government actors in this case will not be held accountable for breaching the First Amendment's guarantee of religious neutrality and tolerance," unlike in Masterpiece.

Justices Stephen Breyer and Elena Kagan signed a separate dissent, expressing concern about how the travel policy has been implemented.

Hours after the ruling, people of faith and advocacy groups rallied in front of the Supreme Court against the ruling, calling for more humane immigration policies moving forward. Although the majority of justices disagreed with these groups' stance on the travel ban, the Supreme Court's ruling did emphasize the importance of religious freedom, Berg said.

"We should not and cannot take away from this decision that discrimination and hostility towards a faith doesn't matter as long as it's against Muslims," he said.

History of the policy

In Trump v. Hawaii, justices considered whether Trump's Sept. 24, 2017, proclamation that banned certain travelers from eight countries, was impermissibly broad. They debated when the Supreme Court can interfere with the president's efforts to protect national security and whether, in light of Trump's anti-Muslim rhetoric in the past, the policy discriminated against the Muslim community, therefore violating the First Amendment.

During oral arguments on April 25, the justices disagreed on how to treat the president's tweets and campaign statements about Islam. The court's more conservative members rejected the characterization of the travel policy as a Muslim ban, while liberal justices said it was fair to consider what Trump had said in social media and at campaign rallies.

"If you look at what was done, it does not look at all like a Muslim ban," said Justice Samuel Alito, noting the policy affects only around 8 percent of the world's Muslims.

"The question is not really what (Trump's) heart of hearts is. The question is what are reasonable observers to think," Kagan said.

The ruling shows Alito's viewpoint won out, Berg said, noting that concerns about interfering with the president's authority carried more weight than concerns about anti-Muslim discrimination.

"The executive branch gets a certain amount of deference in evaluating national security threats," he said.

In the majority opinion, Roberts walked through how the Trump administration arrived at its current travel ban. It followed two previous bans, released in January and March 2017, respectively, which were blocked by multiple federal judges for being too arbitrary and broad.

The policy at the center of the case stems from a review of how other countries vet citizens and respond to security threats. It identified "ongoing deficiencies in the information needed to assess whether nationals of particular countries present public safety threats," Roberts wrote.

This approach was neutral toward religion, even if the president hadn't been leading up to the policy's release, he said.

"The issue before us is not whether to denounce the (president's) statements. It is instead the significance of those statements in reviewing a presidential directive, neutral on its face, addressing a matter within the core of executive responsibility. In doing so, we must consider not only the statements of a particular president, but also the authority of the presidency itself," Roberts wrote.

Justice Anthony Kennedy, who authored the majority opinion in Masterpiece Cakeshop, joined Roberts' opinion in full but wrote a concurrence that seemed to caution Trump to be more careful with his words and actions moving forward.

"The First Amendment prohibits the establishment of religion and promises the free exercise of religion," he wrote. "It is an urgent necessity that officials adhere to these constitutional guarantees and mandates in all their actions, even in the sphere of foreign affairs."

For the dissenters, this scolding didn't go far enough. Sotomayor criticized justices in the majority for undermining America's reputation as a champion of religious freedom.

"The United States of America is a nation built upon the promise of religious liberty. Our founders honored that core promise by embedding the principle of religious neutrality in the First Amendment. The court's decision today fails to safeguard that fundamental principle," Sotomayor wrote.

What's next

In the wake of the ruling, many members of the Muslim community and other faith leaders expressed outrage and disappointment, arguing that the Supreme Court had overlooked Trump's attack on religious freedom.

"Unfortunately, as a nation, we still have a long way to go when it comes to equal protection and living by American ideals," said Nihad Awad, executive director of the Council on American-Islamic Relations, during a post-ruling press conference.

Jonathan Greenblatt, CEO of the Anti-Defamation League, called the decision a "stain" on America's history.

"We stand with the Muslim community today and every day, and will never stop fighting for the values and ideals enshrined by our Constitution," he said in a statement.

Many faith groups spoke out against the ban in the lead up to oral arguments, submitting legal briefs outlining why the travel policy conflicts with religious freedom protections, as the Deseret News reported in April. No religious institutions filed briefs in support of the government's policy and faith groups that approve of the ban have not been as vocal in their views, before or after the ruling.

"I think religious groups who (filed) briefs in opposition to the Trump administration proclamation feel very strongly about the command of equal religious liberty for all," said Melissa Rogers, a nonresident senior scholar with the Brookings Institution and former director of faith-based and community initiatives for the Obama administration, at the time.

In deferring to Trump's presidential authority, the Supreme Court harms the people of faith that the Constitution sought to protect, said Amanda Tyler, executive director of the Baptist Joint Committee for Religious Liberty, in a statement.

"In giving such broad deference to President Trump, the court neglects its duty to uphold our First Amendment principles of religious liberty. Safeguarding religious liberty requires the government to remain neutral with regard to religion, neither favoring one religion over another nor preferring religion or irreligion," she said.

Moving forward, Muslims and other opponents of the travel ban must take heart in what's possible when people work together for positive change, Awad said.

"We have to engage and still have hope in our society, hope in our political system and hope in our court system," he said. "I'm hopeful that this decision will reinvigorate our will to be involved."